Convicted rapist Gareth Ward weighing defamation options, court told

Convicted rapist Gareth Ward, the state MP for Kiama, wants more time to consider whether to pursue a defamation claim against a Sydney radio station, a court has heard.

But a NSW judge specialising in defamation law has raised questions about whether Ward would be able to prove the broadcast caused serious harm to his reputation.

Ward filed NSW District Court defamation proceedings last year against Radio 2SM over comments made by broadcaster John Laws ahead of Ward’s criminal trial. The defamation case was moved temporarily to the court’s “inactive list” pending the outcome of the criminal proceedings.

The Liberal-turned-independent MP was found guilty on Friday by a District Court jury of indecently assaulting an 18-year-old man in 2013, and sexual intercourse without consent against a 24-year-old political staffer in 2015.

Ward is in custody awaiting sentence after his bail was revoked on Wednesday.

The defamation matter returned to the District Court for a procedural hearing on Thursday.

Ward’s lawyer told Judge Judith Gibson, a leading defamation jurist, that a sentencing hearing in the criminal proceedings was slated for September 19, and “my client would like some time to consider his appeal options, and would seek a short indulgence … to have the [defamation] matter stood over until after the 19th of September”.

But Gibson questioned whether such a delay was warranted, and said the sentencing process was likely to be protracted.

The serious harm requirement

Gibson noted that a criminal conviction certificate “can be tendered in defamation proceedings”, and pointed to the requirement that Ward prove the 2SM broadcast has caused or will cause “serious harm” to his reputation to succeed in any defamation suit.

The serious harm requirement was introduced in NSW and most other jurisdictions in 2021. It was designed to weed out trivial or lower-level lawsuits.

A court may hold a separate hearing ahead of any trial on the question of serious harm. If the plaintiff cannot prove a publication or broadcast “has caused, or is likely to cause, serious harm” to their reputation, the case cannot proceed.

“What is the position of the parties in relation to an early hearing on serious harm?” Gibson asked.

She told Ward’s lawyer that “in a case such as this … it may well be that your position needs to take into account that there is essentially a certificate of conviction that can be tendered, and the impact that would have on a serious harm finding”.

Parties return to court next month

Gibson ordered the parties to return to court on September 11 to advise her of their position on a separate hearing on serious harm.

“The matter has been taken out of the inactive list by reason of the plaintiff’s conviction,” Gibson said.

Gibson said there was an “imperative placed on judges to consider serious harm of the court’s own motion” and “I need to have a position from the parties fairly rapidly on that issue”.

“The whole purpose of the serious harm amendments was to ensure that cases that fall within this particular kind of area are dealt with expeditiously and that early rulings are made, when appropriate.

“I don’t see any point in waiting until after the [sentencing] mention, as opposed to before. You should be in a position to consider what will happen in relation to serious harm.”

The issue of serious harm can be dealt with either before a trial or considered among a range of issues during a trial. If the issue is left for consideration at the trial, there is no possibility of an early resolution of the case on the basis that serious harm has not been proven.

“I know some judges in the Federal Court don’t particularly espouse this practice of having early hearings on serious harm,” Gibson said.

“They consider that it’s meretricious, I think is the word [some judges like] … to use.”

The court heard that no steps have been taken in the case since a statement of claim was filed last year.

‘Send an email from prison’

Labor’s leader in the Legislative Assembly, Ron Hoenig, has written to Ward saying the lower house would meet on Tuesday to consider a motion expelling the MP in light of his convictions. Ward has been invited to submit a statement or other material for the house to consider by 9am on Tuesday.

“When Parliament resumes on Tuesday … the Legislative Assembly will be asked whether to consider a motion to expel you as the Member for Kiama from the House,” Hoenig wrote. “Should the House decide to consider such a motion it would do so for its own self-preservation and the orderly exercise of its functions.”

NSW Liberal leader Mark Speakman, one of Ward’s former colleagues, renewed his call for the independent MP to resign from parliament, saying Ward could simply “write a letter” or “send an email from prison”.

Speakman gave his in-principle support for using powers in the lower house to expel Ward, but said he wanted to see any legal advice provided to the premier first.

“If you’re a member of the general public, it would stick in your gut to think that a convicted sex offender is still being paid and not serving the public,” he said.

“Gareth Ward cannot serve his constituents from behind bars ... [If] he won’t resign, parliament needs to take every step legally available to it to remove him from parliament.”

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